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In Re Carrier Iq

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION


September 20, 2012

IN RE CARRIER IQ, INC. CONSUMER PRIVACY LITIGATION

The opinion of the court was delivered by: Edward M. Chen Judge

[Additional Counsel listed on Signature Page]

STIPULATED PROTECTIVE ORDER

[This Document Relates to All Cases] 21 22 23 24 25 26 27 28

1. PURPOSES AND LIMITATIONS

Disclosure and discovery activity in this action are likely to involve production of 3 confidential, proprietary, or private information for which special protection from public 4 disclosure and from use for any purpose other than prosecuting this litigation may be warranted. 5

Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated 6 Protective Order. The parties acknowledge that this Order does not confer blanket protections on 7 all disclosures or responses to discovery and that the protection it affords from public disclosure 8 and use extends only to the limited information or items that are entitled to confidential treatment 9 under the applicable legal principles. The parties further acknowledge, as set forth in Section 10 13.3, below, that this Stipulated Protective Order does not entitle them to file confidential 11 information under seal; Civil Local Rule 79-5 and General Order 62 set forth the procedures that 12 must be followed and the standards that will be applied when a party seeks permission from the court to file material under seal.

2.1 Challenging Party: a Party or Non-Party that challenges the designation of information or items under this Order. 17

2.2 "CONFIDENTIAL" Information or Items: information (regardless of how it is 18 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule 19 of Civil Procedure 26(c). 20

2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as 21 well as their support staff). 22

2.4 Designating Party: a Party or Non-Party that designates information or items that 23 it produces in disclosures or in responses to discovery as "CONFIDENTIAL" or 24 "CONFIDENTIAL -- OUTSIDE COUNSEL ONLY" or "RESTRICTED CONFIDENTIAL -- 25 SOURCE CODE." 26

2.5 Disclosure or Discovery Material: all items or information, regardless of the 27 medium or manner in which it is generated, stored, or maintained (including, among other things, 28 testimony, transcripts, and tangible things), that are produced or generated in disclosures or responses to discovery in this matter. 2

2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to 3 the litigation who (1) has been retained by a Party or its counsel to serve as an expert witness or 4 as a consultant in this action, (2) is not a current employee of a Party or of a Party's competitor, 5 and (3) at the time of retention, is not anticipated to become an employee of a Party or of a 6 Party's competitor. 7

2.7 "CONFIDENTIAL -- OUTSIDE COUNSEL ONLY" Information or Items: 8 extremely sensitive "Confidential Information or Items" the disclosure of which to another Party 9 or Non-Party would create a substantial risk of serious harm that could not be avoided by less 10 restrictive means. 11

2.8 "RESTRICTED CONFIDENTIAL -- SOURCE CODE" Information or Items: extremely sensitive "Confidential Information or Items" representing computer code and associated comments and revision histories, formulas, engineering specifications, or schematics that define or otherwise describe in detail the algorithms or structure of software or hardware designs, disclosure of which to another Party or Non-Party would create a substantial risk of serious harm that could not be avoided by less restrictive means. 17

2.9 House Counsel: attorneys who are employees of a party to this action. House Counsel does not include Outside Counsel of Record or any other outside counsel. 19

2.10 Non-Party: any natural person, partnership, corporation, association, or other legal 20 entity not named as a Party to this action. 21

2.11 Outside Counsel of Record: attorneys who are not employees of a party to this 22 action but are retained to represent or advise a party to this action and have appeared in this action 23 on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party. 24

2.12 Party: any party to this action, including all of its officers, directors, employees, 25 consultants, retained experts, and Outside Counsel of Record (and their support staffs). 26

2.13 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this action. 28

2.14 Professional Vendors: persons or entities that provide litigation support services (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and 2 organizing, storing, or retrieving data in any form or medium) and their employees and 3 subcontractors. 4

2.15 Protected Material: any Disclosure or Discovery Material that is designated as "CONFIDENTIAL," or "CONFIDENTIAL -- OUTSIDE COUNSEL ONLY" or "RESTRICTED 6 CONFIDENTIAL -- SOURCE CODE." 7

2.16 Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing Party. 9

3. SCOPE 10

The protections conferred by this Stipulation and Order cover not only Protected Material (as defined above), but also (1) any information copied or extracted from Protected Material; (2) 12 all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, conversations, or presentations by Parties or their Counsel that might reveal Protected Material.

However, the protections conferred by this Stipulation and Order do not cover the following information: (a) any information that is in the public domain at the time of disclosure to a Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as 17 a result of publication not involving a violation of this Order, including becoming part of the 18 public record through trial or otherwise; and (b) any information known to the Receiving Party 19 prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who 20 obtained the information lawfully and under no obligation of confidentiality to the Designating 21 Party. Any use of Protected Material at trial shall be governed by a separate agreement or order. 22

4. DURATION 23

Even after final disposition of this litigation, the confidentiality obligations imposed by 24 this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court 25 order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all 26 claims and defenses in this action, with or without prejudice; and (2) final judgment herein after 27 the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, 28 including the time limits for filing any motions or applications for extension of time pursuant to applicable law. 2

5. DESIGNATING PROTECTED MATERIAL 3

4 or Non-Party that designates information or items for protection under this Order must take care 5 to limit any such designation to specific material that qualifies under the appropriate standards. 6

5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party

To the extent it is practical to do so, the Designating Party must designate for protection only 7 those parts of material, documents, items, or oral or written communications that qualify-so that 8 other portions of the material, documents, items, or communications for which protection is not 9 warranted are not swept unjustifiably within the ambit of this Order. 10

11 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 12 unnecessarily encumber or retard the case development process or to impose unnecessary expenses and burdens on other parties) expose the Designating Party to sanctions.

If it comes to a Designating Party's attention that information or items that it designated for protection do not qualify for protection at all or do not qualify for the level of protection initially asserted, that Designating Party must promptly notify all other parties that it is 17 withdrawing the mistaken designation. 18

Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so 21 designated before the material is disclosed or produced. 22

24 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing 25

ONLY" or "RESTRICTED CONFIDENTIAL -- SOURCE CODE" to each page of a document 27 that contains protected material. 28

STIPULATED PROTECTIVE ORDER 4 CASE NO. 3:12-md-02330-EMC

Mass, indiscriminate, or routinized designations are prohibited. Designations that are

5.2 Manner and Timing of Designations. Except as otherwise provided in this Order (see, e.g., second paragraph of Section 5.2(a) below), or as otherwise stipulated or ordered, 20

Designation in conformity with this Order requires:

(a) for information in documentary form (e.g., paper or electronic documents, but Party affix the legend "CONFIDENTIAL" or "CONFIDENTIAL -- OUTSIDE COUNSEL 26

A Party or Non-Party that makes original documents or materials available for inspection need not designate them for protection until after the inspecting Party has indicated which 2 material it would like copied and produced. During the inspection and before the designation, all 3 of the material made available for inspection shall be deemed "CONFIDENTIAL -- OUTSIDE 4 COUNSEL ONLY." After the inspecting Party has identified the documents it wants copied and 5 produced, the Producing Party must determine which documents, or portions thereof, qualify for 6 protection under this Order. Then, before producing the specified documents, the Producing 7

COUNSEL ONLY" or "RESTRICTED CONFIDENTIAL -- SOURCE CODE" to each page of a 9 document that contains Protected Material. 10

Party must affix the appropriate legend ("CONFIDENTIAL" or "CONFIDENTIAL -- OUTSIDE 8

(b) for testimony given in deposition or in other pretrial or trial proceedings, that the Designating Party identify on the record, before the close of the deposition, hearing, or other 12 proceeding, all protected testimony and specify the level of protection being asserted. When it is impractical to identify separately each portion of testimony that is entitled to protection and it appears that substantial portions of the testimony may qualify for protection, the Designating Party may invoke on the record (before the deposition, hearing, or other proceeding is concluded) a right to have up to 21 days to identify the specific portions of the testimony as to which 17 protection is sought and to specify the level of protection being asserted. Only those portions of 18 the testimony that are appropriately designated for protection within the 21 days shall be covered 19 by the provisions of this Stipulated Protective Order. Alternatively, a Designating Party may 20 specify, at the deposition or up to 21 days afterwards if that period is properly invoked, that the 21 entire transcript shall be treated as "CONFIDENTIAL" or "CONFIDENTIAL -- OUTSIDE 22

Parties shall give the other parties notice if they reasonably expect a deposition, hearing or 24 other proceeding to include Protected Material so that the other parties can ensure that only 25 authorized individuals who have signed the "Acknowledgment and Agreement to Be Bound" 26

(Exhibit A) are present at those proceedings. The use of a document as an exhibit at a deposition 27 shall not in any way affect its designation as "CONFIDENTIAL" or "CONFIDENTIAL -- 28

COUNSEL ONLY" or "RESTRICTED CONFIDENTIAL -- SOURCE CODE." 23 OUTSIDE COUNSEL ONLY" or "RESTRICTED CONFIDENTIAL -- SOURCE CODE."

Transcripts containing Protected Material shall have an obvious legend on the title page 2 that the transcript contains Protected Material, and the title page shall be followed by a list of all 3 pages (including line numbers as appropriate) that have been designated as Protected Material and 4 the level of protection being asserted by the Designating Party. The Designating Party shall 5 inform the court reporter of these requirements. Any transcript that is prepared before the 6 expiration of a 21-day period for designation shall be treated during that period as if it had been 7 designated "CONFIDENTIAL -- OUTSIDE COUNSEL ONLY" in its entirety unless otherwise 8 agreed. After the expiration of that period, the transcript shall be treated only as actually 9 designated. 10

(c) for information produced in some form other than documentary and for any other 11 tangible items, that the Producing Party affix in a prominent place on the exterior of the container 12 or containers in which the information or item is stored the legend "CONFIDENTIAL" or SOURCE CODE." If only a portion or portions of the information or item warrant protection, the Producing Party, to the extent practicable, shall identify the protected portion(s) and specify the level of protection being asserted. 17

5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 18 designate qualified information or items does not, standing alone, waive the Designating Party's 19 right to secure protection under this Order for such material. Upon timely correction of a 20 designation, the Receiving Party must make reasonable efforts to assure that the material is 21 treated in accordance with the provisions of this Order. 22

6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 23

6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 24 confidentiality at any time. Unless a prompt challenge to a Designating Party's confidentiality 25 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 26 burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to 27 challenge a confidentiality designation by electing not to mount a challenge promptly after the 28 original designation is disclosed.

2 process by providing written notice of each designation it is challenging and describing the basis 3 for each challenge. To avoid ambiguity as to whether a challenge has been made, the written 4 notice must recite that the challenge to confidentiality is being made in accordance with this 5 specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in 6 good faith and must begin the process by conferring directly (in voice to voice dialogue; other 7 forms of communication are not sufficient) within 14 days of the date of service of notice. In 8 conferring, the Challenging Party must explain the basis for its belief that the confidentiality 9 designation was not proper and must give the Designating Party an opportunity to review the 10 designated material, to reconsider the circumstances, and, if no change in designation is offered, 11 to explain the basis for the chosen designation. A Challenging Party may proceed to the next 12 stage of the challenge process only if it has engaged in this meet and confer process first or establishes that the Designating Party is unwilling to participate in the meet and confer process in a timely manner.

6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court intervention, the Designating Party shall file and serve a motion to retain confidentiality under 17 Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5 and General Order 62, if 18 applicable) within 21 days of the initial notice of challenge or within 14 days of the parties 19 agreeing that the meet and confer process will not resolve their dispute, whichever is earlier. 20

Each such motion must be accompanied by a competent declaration affirming that the movant has 21 complied with the meet and confer requirements imposed in the preceding paragraph. Failure by 22 the Designating Party to make such a motion including the required declaration within 21 days (or 23

14 days, if applicable) shall automatically waive the confidentiality designation for each 24 challenged designation. In addition, the Challenging Party may file a motion challenging a 25 confidentiality designation at any time if there is good cause for doing so, including a challenge to 26 the designation of a deposition transcript or any portions thereof. Any motion brought pursuant 27 to this provision must be accompanied by a competent declaration affirming that the movant has 28 complied with the meet and confer requirements imposed by the preceding paragraph.

STIPULATED PROTECTIVE ORDER 7 CASE NO. 3:12-md-02330-EMC

6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution The burden of persuasion in any such challenge proceeding shall be on the Designating Party. Frivolous challenges and those made for an improper purpose (e.g., to harass or impose 3 unnecessary expenses and burdens on other parties) may expose the Challenging Party to 4 sanctions. Unless the Designating Party has waived the confidentiality designation by failing to 5 file a motion to retain confidentiality as described above, all parties shall continue to afford the 6 material in question the level of protection to which it is entitled under the Producing Party's 7 designation until the court rules on the challenge. 8

7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed 10 or produced by another Party or by a Non-Party in connection with this case only for prosecuting, 11 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only 12 to the categories of persons and under the conditions described in this Order. When the litigation has been terminated, a Receiving Party must comply with the provisions of Section 14 below

(FINAL DISPOSITION).

Protected Material must be stored and maintained by a Receiving Party at a location and in a secure manner that ensures that access is limited to the persons authorized under this Order. 17

18 ordered by the court or permitted in writing by the Designating Party, a Receiving Party may 19 disclose any information or item designated "CONFIDENTIAL" only to: 20

21 employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the 22 information for this litigation and who have signed the "Acknowledgment and Agreement to Be 23

(b) the officers, directors, and employees (including House Counsel) of the

Receiving Party to whom disclosure is reasonably necessary for this litigation and who have 26 signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A); 27

28 disclosure is reasonably necessary for this litigation and who have signed the "Acknowledgment

7.2 Disclosure of "CONFIDENTIAL" Information or Items. Unless otherwise (a) the Receiving Party's Outside Counsel of Record in this action, as well as Bound" that is attached hereto as Exhibit A; 24

(c) Experts (as defined in this Order) of the Receiving Party to whom and Agreement to Be Bound" (Exhibit A); 2

4 jurors, and Professional Vendors to whom disclosure is reasonably necessary for this litigation 5 and who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A); 6

7 reasonably necessary and who have signed the "Acknowledgment and Agreement to Be Bound" 8

(d) the court and its personnel;

(e) court reporters and their staff, professional jury or trial consultants, mock

(f) during their depositions, witnesses in the action to whom disclosure is

(Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court. Pages of 9 transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be 10 separately bound by the court reporter and may not be disclosed to anyone except as permitted 11 under this Stipulated Protective Order. 12

containing the information or a custodian or other person who otherwise possessed or knew the information.

(g) the author or recipient of a document in the normal course of business

7.3 Disclosure of "CONFIDENTIAL -- OUTSIDE COUNSEL ONLY" Information

or Items. Unless otherwise ordered by the court or permitted in writing by the Designating Party, 17 a Receiving Party may disclose any information or item designated "CONFIDENTIAL -- 18

(a) the Receiving Party's Outside Counsel of Record in this action, as well as 20 employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the 21 information for this litigation and who have signed the "Acknowledgment and Agreement to Be 22

(b) Experts of the Receiving Party (1) to whom disclosure is reasonably 24 necessary for this litigation, (2) who have signed the "Acknowledgment and Agreement to Be 25

Bound" (Exhibit A), and (3) as to whom the procedures set forth in paragraph 7.5(a), below, have 26 been followed; 27

OUTSIDE COUNSEL ONLY" only to: 19

Bound" that is attached hereto as Exhibit A; 23

(c) the court and its personnel;

(d) court reporters and their staff, professional jury or trial consultants, mock jurors, and Professional Vendors to whom disclosure is reasonably necessary for this litigation 2 and who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A); and 3

(e) the author or recipient of a document in the normal course of business

4 containing the information or a custodian or other person who otherwise possessed or knew the 5 information. 6

7 or Items. Unless otherwise ordered by the court or permitted in writing by the Designating Party, 8 a Receiving Party may disclose any information or item designated "RESTRICTED 9

(a) The Receiving Party's Outside Counsel of Record in this action, as well as

11 employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the 12 information for this litigation and who have signed the "Acknowledgment and Agreement to Be

7.4 Disclosure of "RESTRICTED CONFIDENTIAL -- SOURCE CODE" Information

CONFIDENTIAL -- SOURCE CODE" only to: 10

Bound" that is attached hereto as Exhibit A;

(b) Experts of the Receiving Party (1) to whom disclosure is reasonably necessary for this litigation, and (2) who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A), and (3) as to whom the procedures set forth in paragraph 7.5(a), below, have 17 been followed. In no event shall any disclosure be made to current employees, officers, directors 18 or consultants of any competitors of the Producing Party, or to anyone who, at the time of 19 disclosure, is anticipated to become an employee, officer, director or consultant of any competitor 20 of the Producing Party, irrespective of whether they are retained as a disclosed testifying expert or 21 undisclosed consulting expert for the plaintiffs, without the written consent of the Producing 22

Party or an order of the Court. A "competitor" shall be defined as any mobile device 23 manufacturer or distributor that manufactures, markets, distributes or sells mobile devices*fn1 ;

(c) the court and its personnel;

(d) court reporters and their staff, professional jury or trial consultants, mock jurors, and Professional Vendors to whom disclosure is reasonably necessary for this litigation 2 and who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A); and 3

(e) the author or recipient of a document in the normal course of business 4 containing the information or a custodian or other person who otherwise possessed or knew the 5 information. 6

Information or Items to Experts. 9

7.5 Procedures for Approving or Objecting to Disclosure of "CONFIDENTIAL -- OUTSIDE COUNSEL ONLY" or "RESTRICTED CONFIDENTIAL -- SOURCE CODE" 8

(a) Unless otherwise ordered by the court or agreed to in writing by the Designating Party, a Party that seeks to disclose to an Expert (as defined in this Order) any information or item 11 that has been designated "CONFIDENTIAL -- OUTSIDE COUNSEL ONLY" or "RESTRICTED 12 written request to the Designating Party that (1) indicates that the information that the Receiving Party seeks permission to disclose to the Expert is designated "CONFIDENTIAL -- OUTSIDE COUNSEL ONLY" and/or "RESTRICTED CONFIDENTIAL -- SOURCE CODE", (2) sets forth the full name of the Expert and the city and state of his or her primary residence, (3) attaches a 17 copy of the Expert's current resume, (4) identifies the Expert's current employer(s), (5) identifies 18 each person or entity from whom the Expert has received compensation or funding for work in 19 his or her areas of expertise or to whom the expert has provided professional services, including 20 in connection with a litigation, at any time during the preceding five years, and (6) identifies (by 21 name and number of the case, filing date, and location of court) any litigation in connection with 22 which the Expert has offered expert testimony, including through a declaration, report, or 23 testimony at a deposition or trial, during the preceding five years.

25 preceding respective paragraphs may disclose the subject Protected Material to the identified 26

Expert unless, within 10 business days of delivering the request, the Party receives a written 27 objection from the Designating Party. Any such objection must set forth in detail the grounds on 28 which it is based.

CONFIDENTIAL -- SOURCE CODE" pursuant to paragraphs 7.3(b) and 7.4(b) first must make a

(b) A Party that makes a request and provides the information specified in the (c) A Party that receives a timely written objection must meet and confer with the

Designating Party (through direct voice to voice dialogue) to try to resolve the matter by 3 agreement within 5 business days of the written objection. If no agreement is reached, the Party 4 seeking to make the disclosure to the Expert may file a motion as provided in Civil Local Rule 7 5

(and in compliance with Civil Local Rule 79-5 and General Order 62, if applicable) seeking 6 permission from the court to do so. Any such motion must describe the circumstances with 7 specificity, set forth in detail the reasons why the disclosure to the Expert is reasonably necessary, 8 assess the risk of harm that the disclosure would entail, and suggest any additional means that 9 could be used to reduce that risk. In addition, any such motion must be accompanied by a 10 competent declaration describing the parties' efforts to resolve the matter by agreement (i.e., the 11 extent and the content of the meet and confer discussions) and setting forth the reasons advanced 12 by the Designating Party for its refusal to approve the disclosure.

In any such proceeding, the Party opposing disclosure to the Expert shall bear the burden of proving that the risk of harm that the disclosure would entail (under the safeguards proposed) outweighs the Receiving Party's need to disclose the Protected Material to its Expert.

8. SOURCE CODE 17

Producing Party may designate source code as "RESTRICTED CONFIDENTIAL -- SOURCE 19 (b) Protected Material designated as "RESTRICTED CONFIDENTIAL -- SOURCE CODE" may be disclosed only as set forth in Paragraphs 7.4 and 7.5. 22

23 format allowing it to be reasonably reviewed and searched, during normal business hours or at 24 other mutually agreeable times, at: (1) an office of the Producing Party's counsel; (2) another 25 location located within the Northern District of California or any judicial district within the 26

United States within which the source code is stored in the ordinary course of business (e.g., a 27 source code escrow company); or (3) another mutually agreed upon location. Any location under 28

(a) To the extent production of source code becomes necessary in this case, a CODE" if it comprises or includes confidential, proprietary or trade secret source code. 20

(c) Any source code produced in discovery shall be made available for inspection, in a (1), (2) or (3) above shall be in the continental United States. Prior to a request for inspection to 2 source code, the parties shall meet and confer in good faith to select a location for review of the 3 source code. Prior to the first inspection of any requested Source Code, the Receiving Party shall 4 provide fourteen (14) days notice of the Source Code that it wishes to inspect. The Receiving 5

Party shall provide ten (10) days notice prior to any additional inspections. The source code shall 6 be made available for inspection on a secured computer in a secured room without Internet access 7 or network access to other computers, and the Receiving Party shall not copy, remove, or 8 otherwise transfer any portion of the source code onto any recordable media or recordable device. 9

No recording or memory devices, including but not limited to mobile phones, cameras, video 10 recorders, or portable storage media, may be brought into the secured room where source code is 11 to be reviewed. The Producing Party may visually monitor the activities of the Receiving Party's 12 representatives during any source code review, but only to ensure that there is no unauthorized recording, copying, or transmission of the source code

. Such monitoring shall not be construed as 17 the Source Code is inspected except as otherwise provided herein. The Producing Party shall 18 make available a laser printer with commercially reasonable printing speeds for on-site printing 19 during inspection of the Source Code. The Receiving Party may print limited portions of source 20 code that are reasonably necessary for the preparation of court filings, pleadings, expert reports, 21 or other papers, or for deposition or trial, but shall not request paper copies for the purposes of 22 reviewing the source code other than electronically as set forth in paragraph (c) in the first 23 instance. Upon printing any such portions of Source Code, the printed pages shall be collected by 24 the Producing Party for subsequent production. The Producing Party shall bates number all such 25 printed source code and label each page "RESTRICTED CONFIDENTIAL -- SOURCE CODE." 26

Within five (5) days, the Producing Party shall either (i) provide one paper copy set of such pages 27 to the Receiving Party or (ii) inform the Receiving Party that it objects that the printed portions 28 are excessive and/or not done for a permitted purpose and articulate the reasons for the objection.

STIPULATED PROTECTIVE ORDER 13 CASE NO. 3:12-md-02330-EMC

a waiver of the work product privilege or other applicable privileges. The Producing Party's monitor shall not be an attorney, or paralegal directly involved in the case.

(d) No copies of all or any portion of the Source Code may leave the room in which Any printed portion that exceeds 10% or 500 pages of the total source code produced, whichever 2 is less, or consists of more than 25 pages of a continuous block of Source Code shall be presumed 3 to be excessive and the burden shall be on the Receiving Party to demonstrate the need for such a 4 printed copy. The parties shall then meet and confer in good faith, at which time the Requesting 5

Party shall demonstrate the need for printed copies exceeding these presumed limits. If the 6 parties are unable to reach agreement on the Receiving Party's request for the printed copies, the 7

Producing Party may challenge the remaining portion pursuant to the dispute resolution 9 procedures and timeframes set forth in Paragraph 6 whereby the Producing Party is the 10

"Challenging Party" and the Receiving Party is the "Designating Party" for purposes of dispute 11 resolution, except insofar as they are inconsistent with this paragraph. 12

additional paper copies of any printed portions of the Source Code received from a Producing Party, not including copies attached to court filings or used at depositions. The Receiving Party shall maintain a record of any individual who has inspected any portion of the source code in electronic or paper form. The Receiving Party shall maintain all paper copies of any printed 17 portions of the source code in a secured, locked area. The Receiving Party shall only make 18 additional paper copies if such additional copies are (1) necessary to prepare court filings, 19 pleadings, or other papers (including a testifying expert's expert report), (2) necessary for 20 deposition, or (3) otherwise necessary for the preparation of its case. Any paper copies used 21 during a deposition shall be retrieved by the Producing Party at the end of each day and must not 22 be given to or left with a court reporter or any other individual. The Producing Party shall 23 maintain the paper copy of the deposition exhibit, and the deposition transcript shall refer to the 24 bates numbers of the exhibit. 25

(f) The Receiving Party shall not create any stored electronic copies of the paper 26 copies and shall not convert any of the information contained in the paper copies into any stored 27 electronic format. This restriction shall not prevent the Receiving Party from using video 28 conferencing technologies to permit persons who are permitted to review source code pursuant to Producing Party shall produce the printed portion that it does not contend is excessive, and the 8

(e) The Receiving Party's outside counsel of record may make no more than five (5)

Section 7.4 of this Order to view printouts of the source code for purposes (1) necessary to 2 preparing court filings, pleadings, or other papers (including a testifying expert's report), (2) 3 necessary for deposition, or (3) otherwise necessary for the preparation of its case, provided that a 4 stored electronic copy of the source code is not created by such technologies. 5

LITIGATION 7

8 that compels disclosure of any information or items designated in this action as 9

CONFIDENTIAL -- SOURCE CODE" that Receiving Party must:

(a) promptly notify in writing the Designating Party. Such notification shall include a 12 copy of the subpoena or court order;

9. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 6

If a Receiving Party is served with a subpoena or a court order issued in other litigation

"CONFIDENTIAL" or "CONFIDENTIAL -- OUTSIDE COUNSEL ONLY" or "RESTRICTED 10

(b) promptly notify in writing the party w ho caused the subpoena or order to issue in all of the material covered by th

the other litigation that some or e subpoena or order is subject to

this Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and 17

(c) cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected Material may be affected. 19

20 subpoena or court order shall not produce any information designated in this action as 21 CONFIDENTIAL -- SOURCE CODE" before a determination by the court from which the 23 subpoena or order issued, unless the Receiving Party has obtained the Designating Party's 24 permission. The Designating Party shall bear the burden and expense of seeking protection in 25 that court of its confidential material-and nothing in these provisions should be construed as 26 authorizing or encouraging a Receiving Party in this action to disobey a lawful directive from 27 another court. 28

If the Designating Party timely seeks a protective order, the Party served with the

10. A NON-PARTY'S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION 3

4 this action and designated as "CONFIDENTIAL" or "CONFIDENTIAL -- OUTSIDE COUNSEL 5

ONLY" or "RESTRICTED CONFIDENTIAL -- SOURCE CODE." Such information produced 6 by Non-Parties in connection with this litigation is protected by the remedies and relief provided 7 by this Order. Nothing in these provisions should be construed as prohibiting a Non-Party from 8 seeking additional protections.

(a) The terms of this Order are applicable to information produced by a Non- Party in (b) In the event that a Party is required, by a valid discovery request, to produce a Non-Party's confidential information in its possession, and the Party is subject to an agreement 11 with the Non-Party not to produce the Non-Party's confidential information, then the Party shall: 12

1. promptly notify in writing the Requesting Party and the Non-Party that some or all of the information requested is subject to a confidentiality agreement with a Non-

2. promptly provide the Non-Party with a copy of the Stipulated Protective Order in this litigation, the relevant discovery request(s), and a reasonably specific description of 17 the information requested; and 18

3. make the information requested available for inspection by the Non-Party. 20

21 days of receiving the notice and accompanying information, the Receiving Party may produce the 22

Non-Party's confidential information responsive to the discovery request. If the Non-Party timely 23 seeks a protective order, the Receiving Party shall not produce any information in its possession 24 or control that is subject to the confidentiality agreement with the Non-Party before a 25 determination by the court. Absent a court order to the contrary, the Non-Party shall bear the 26 burden and expense of seeking protection in this court of its Protected Material. 27

If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected

(c) If the Non-Party fails to object or seek a protective order from this court within 14 Material to any person or in any circumstance not authorized under this Stipulated Protective 2

Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the 3 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the 4

Protected Material, (c) inform the person or persons to whom unauthorized disclosures were 5 made of all the terms of this Order, and (d) request such person or persons to execute the 6

12. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 8

Any inadvertent disclosure or production of materials subject to the work product

10 doctrine, the attorney-client privilege, or any other applicable privilege or protection shall not 11 constitute or be deemed a waiver of any such privilege or protection, provided that the Producing 12

"Acknowledgment and Agreement to Be Bound" that is attached hereto as Exhibit A. 7

MATERIAL 9

Party shall notify the Receiving Party in writing of such protection or privilege promptly after the Producing Party discovers such materials have been inadvertently produced. A Party who receives any inadvertently disclosed information ma y not use or disclose such information in this

or any other proceeding or to any third party. Within five (5) business days after receiving notification of the inadvertent disclosure or production, the Receiving Party shall certify in 17 writing that it has destroyed, sequestered or returned all copies of the inadvertently disclosed or 18 produced information, including any summaries thereof. Within five (5) business days after the 19 receipt of the Receiving Party's confirmation that it has destroyed, sequestered or returned all 20 copies of the inadvertently disclosed or produced information, the Producing Party shall provide 21 the Receiving Party with a record (i.e., privilege log) establishing the privileged or protected 22 nature of the inadvertently disclosed information. The Producing Party must preserve a copy of 23 all such inadvertently disclosed information. Notwithstanding the foregoing, the Receiving Party 24 may move the Court for an order compelling production of the inadvertently produced 25 information on the ground that it is not, in fact, privileged or protected; however, the moving 26 party may not assert the circumstances surrounding the inadvertent disclosure as a ground for 27 entering such an order. Any such motion must be filed within five (5) business days of receipt of 28 the privilege log and under seal, if appropriate. The Producing Party retains the burden of establishing the privileged or protected nature of any inadvertently disclosed or produced 2 information. Nothing herein shall otherwise limit the right of any Party to petition the Court for 3 an in camera review of the inadvertently disclosed or produced information to determine whether 4 the information is privileged or protected. 5

13.1 Right to Further Relief. Nothing in this Order abridges the right of any person to 7 seek its modification by the court in the future. 8

13. MISCELLANEOUS 6

13.2 Right to Assert Other Objections. By stipulating to the entry of this Protective Order no Party waives any right it otherwise would have to object to disclosing or producing any 10 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, 11 no Party waives any right to object on any ground to use in evidence of any of the material 12 covered by this Protective Order.

13.3 Filing Protected Material. Without written permission from the Designating Party or a court order secured after appropriate notice to all interested persons, a Party may not file in the public record in this action any Protected Material. A Party that seeks to file under seal any Protected Material must comply with Civil Local Rule 79-5 and General Order 62. Protected 17 Material may only be filed under seal pursuant to a court order authorizing the sealing of the 18 specific Protected Material at issue. Pursuant to Civil Local Rule 79-5 and General Order 62, a 19 sealing order will issue only upon a request establishing that the Protected Material at issue is 20 privileged, protectable as a trade secret, or otherwise entitled to protection under the law. If a 21

5(d) and General Order 62 is denied by the court, then the Receiving Party may file the Protected 23

Material in the public record pursuant to Civil Local Rule 79-5(e) unless otherwise instructed by 24 the court. If a Receiving Party believes that only a portion of Designated Material is Protected 25

Material, the Receiving Party and Producing Party shall meet and confer in good faith concerning 26 the redaction of only the Protected Material prior to filing with the Court. 27

Testifying experts shall not be subject to discovery of any draft of their reports in this case

Receiving Party's request to file Protected Material under seal pursuant to Civil Local Rule 79-22

14. COMMUNICATIONS WITH TESTIFYING EXPERTS

and such draft reports, notes, outlines, or any other writings leading up to an issued report(s) in 2 this litigation are exempt from discovery. In addition, all communications between counsel for a 3 party and that party's testifying expert, and all materials generated by a testifying expert with 4 respect to that person's work, are exempt from discovery unless they identify facts, data or 5 assumptions relied upon by the expert in forming any opinions in this litigation and such 6 information is not already disclosed in the expert's report. The Parties agree that this section in 7 no way limits protections against discovery of testifying expert draft reports and communications 8 with counsel provided by Federal Rule of Civil Procedure 26(b)(4). 9

Within 60 days after the final disposition of this action, as defined in Section 4, or such

11 other time as may be agreed upon by the parties and ordered by the Court, each Receiving Party 12 must return all Protected Material to the Producing Party or destroy such material. As used in this

subdivision, "all Protected Material" includes all copies, abstracts, compilations, summaries, and

any other format reproducing or capturing any of the Protected Material. Whether the Protected

Material is returned or destroyed, the Receiving Party must submit a written certification to the

Producing Party (and, if not the same person or entity, to the Designating Party) by the 60 day 17 deadline that (1) identifies (by category, where appropriate) all the Protected Material that was 18 returned or destroyed and (2) affirms that the Receiving Party has not retained any copies, 19 abstracts, compilations, summaries or any other format reproducing or capturing any of the 20

Protected Material. Notwithstanding this provision, Counsel are entitled to retain an archival 21 copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, 22 correspondence, deposition and trial exhibits, expert reports, attorney work product, and 23 consultant and expert work product, even if such materials contain Protected Material. Any such 24 archival copies that contain or constitute Protected Material remain subject to this Protective 25

15. FINAL DISPOSITION 10

Order as set forth in Section 4 (DURATION). 26

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

Dated: September 17, 2012 By: /s/ Robert F. Lopez 3 STEVE W. BERMAN HAGENS BERMAN SOBOL SHAPIRO LLP Robert F. Lopez (Pro Hac Vice) Thomas E. Loeser (202724) 4 HAGENS BERMAN SOBOL SHAPIRO LLP 1918 Eighth Avenue, Suite 3300 5 Seattle, WA 98101 Telephone: (206) 623-7292 6 Facsimile: (206) 623-0594 steve@hbsslaw.com 7 robl@hbsslaw.com toml@hbsslaw.com 8 9 10 Jeff D. Friedman (173886) Shana E. Scarlett (217895) HAGENS BERMAN SOBOL SHAPIRO LLP 715 Hearst Avenue, Suite 202 Berkeley, CA 94710 11 12 Telephone: (510) 725-3000 LLP Facsimile: (510) 725-3001 EST AW LIEW 13 jefff@hbsslaw.com TTORNEYS AT &OUNTAIN 14 ENWICK W V shanas@hbsslaw.com 15 By: /s/ Daniel L. Warshaw ____ A M Daniel L. Warshaw (185365) 16 F PEARSON SIMON WARSHAW & PENNY, LLP 15165 Ventura Blvd., Suite 400 Sherman Oaks, CA 91403 Telephone: (818) 788-8300 17 Facsimile: (818) 788-8104 dwarshaw@pswplaw.com 18 19 20 BRUCE L. SIMON 44 Montgomery Street, Suite 1200 PEARSON SIMON WARSHAW & PENNY, LLP San Francisco, CA 94104 21 Telephone: (415) 433-9000 Facsimile: (415) 433-9008 22 23 bsimon@pswplaw.com 24 Plaintiffs' Interim Co-Lead Counsel By: /s/ Tyler G. Newby Rodger R. Cole (CSB No. 178865) rcole@fenwick.com Molly R. Melcher (CSB No. 272950) 3 mmelcher@fenwick.com FENWICK & WEST LLP 4 801 California Street Mountain View, CA 94041 5 Ph: (650) 988-8500 6 Fax: (650) 938-5200 7 Tyler G. Newby (CSB No. 205790) tnewby@fenwick.com 8 Jennifer J. Johnson (CSB No. 252897) jjjohnson@fenwick.com 9 FENWICK & WEST LLP 10 555 California Street, 12th Floor San Francisco, CA 94104 11 Ph: (415) 875-2300 Fax: (415) 281-1350 12 LLP Attorneys for Defendant Carrier IQ, Inc. 13 L EST AW IEW V W & TTORNEYS AT OUNTAIN 14 By: /s/ Rosemarie T. Ring Rosemarie T. Ring (SBN 220769) ENWICK M A 15 Rose.Ring@mto.com F Jonathan H. Blavin (SBN 230269) 16 Jonathan.Blavin@mto.com Bryan H. Heckenlively (SBN 279140) 17 Bryan.Heckenlively@mto.com MUNGER, TOLLES & OLSON, LLP 18 560 Mission Street Twenty-Seventh Floor 19 San Francisco, CA 94105-2907 Phone: (415) 512-4000 20 Fax: (415) 512-4077 21 Henry Weissmann (SBN 132418) Henry.Weissmann@mto.com 22 MUNGER, TOLLES & OLSON, LLP 355 South Grand Avenue, 23 Thirty-Fifth Floor Los Angeles, CA 90071-1560 24 Telephone: (213) 683-9100 Facsimile: (213) 687-3702 Attorneys for Defendant HTC America, Inc. By: /s/ Simon J. Frankel Simon J. Frankel sfrankel@cov.com Mali B. Friedman 3 mfriedman@cov.com COVINGTON & BURLING LLP 4 1 Front St., 35th Floor San Francisco, CA 94111 5 Phone: (415) 591-6000 Fax: (415) 591-6091 6 Attorneys for Defendant Huawei Devices USA, 7 Inc. 8 By: /s/ James Donato 9 James Donato (SBN (146140) jdonato@shearman.com 10 SHEARMAN & STERLING LLP Four Embarcadero Center, Suite 3800 11 San Francisco, CA 94111-5994 Phone: (415) 616-1100 12 Fax: (415) 616-1199 LLP EST IEW AW 13 L Attorneys for Defendant LG Electronics MobileComm U.S.A., Inc. W TTORNEYS AT V &OUNTAIN 14 ENWICK M A 15 By: /s/ Norman K. Beck F Peter C. McCabe III 16 pmccabe@winston.com Norman K. Beck 17 nbeck@winston.com Scott T. Sakiyama 18 ssakiyama@winston.com WINSTON & STRAWN LLP 19 35 W. Wacker Drive Chicago, IL 60601-9703 20 Phone: (312) 558-5600 Fax: (312) 558-5700 21 Richard A. Lapping (SBN: 107496) 22 rlapping@winston.com WINSTON & STRAWN LLP 23 101 California Street San Francisco, CA 94111-5894 24 Telephone: (415) 591-1000 Facsimile: (415) 591-1400 25 Attorneys for Defendant Motorola Mobility LLC By: /s/ Wayne M. Helge Wayne M. Helge whelge@park-law.com H.C. Park & Associates, PLC 3 8500 Leesburg Pike, Suite 7500 Vienna, VA 22182 4 Phone: (703) 288-5105 Fax: (703) 288-5139 5 Attorneys for Defendant Pantech Wireless, Inc. 6 7 By: /s/ Lance A. Etcheverry Lance A. Etcheverry 8 lance.etcheverry@skadden.com 300 South Grand Avenue, Suite 3400 9 Los Angeles, California 90071 Phone: (213) 687-5000 10 Fax: (213) 687-5600 11 Attorneys for Defendant Samsung Telecommunications America,

PURSUANT TO STIPULATION, IT IS SO ORDERED.

THE HONORABLE EDWARD M. CHEN United States District Judge

IT IS SO ORDERED

ATTESTATION PURSUANT TO GENERAL ORDER 45

I, Tyler G. Newby, attest that concurrence in the filing of this document has been obtained

3 from the signatories indicated by a "conformed" signature (/s/) in this e-filed document. 4

I declare under penalty of perjury under the laws of the United States of America that the

5 foregoing is true and correct. Executed this 17th day of September, 2012 in San Francisco, 6

California. 7 8

DATED: September 17, 2012 /s/ Tyler G. Newby

Tyler G. Newby EXHIBIT A

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

I, [print or type full name], of [print

4 or type full address], declare under penalty of perjury that I have read in its entirety and 5 understand the Stipulated Protective Order that was issued by the United States District Court for 6 the Northern District of California on , 2012 in the case In re Carrier IQ, 7

Inc. Consumer Privacy Litigation; Case No. 3:12-md-02330-EMC. I agree to comply with and to 8 be bound by all the terms of this Stipulated Protective Order and I understand and acknowledge 9 that failure to so comply could expose me to sanctions and punishment in the nature of contempt. 10

I solemnly promise that I will not disclose in any manner any information or item that is subject 11 to this Stipulated Protective Order to any person or entity except in strict compliance with the 12 provisions of this Order.

I further agree to submit to the jurisdiction of the United States District Court for the

Northern District of California for the purpose of enforcing the terms of this Stipulated Protective

Order, even if such enforcement proceedings occur after termination of this action. 16 I hereby appoint [print or type full name] of

[print or type full address and telephone number] as my California agent for service of

18 process in connection with this action or any proceedings related to enforcement of this Stipulated 19

Protective Order. 20 21

Date: , 2012 22

City and State where sworn and signed: 23 24

Printed name: 25

[printed name]

Signature: 27

[signature]


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